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DCFS Caseworker Questions:

Parents/Guardians Questions

What is mediation?

Mediation is a process involving an unbiased party (the mediator) assisting families, attorneys and other professionals in addressing and discussing issues that may lead to an agreement that will meet the child's and families needs and interests.

What types of cases are eligible for mediation through the Child Welfare Mediation Program?

Any child welfare case currently under the jurisdiction of the juvenile court is eligible to be referred to mediation. Cases can be mediated at any stage of the child welfare process - from pre-adjudication to post-termination/relinquishment.

How can mediation help me and my family?

Mediation will give the parties and their attorneys an opportunity to discuss issues and to be heard outside of the formal court setting. (It may aslo provide you with the opportunity to share ideas and help make a plan for the care and protection of your child.)

Who will be there?

The parents and their attorney(s), state's attorney, child's attorney (Guardian ad Litem), and DCFS caseworker(s) are the primary people that will be participating in the mediation. Sometimes, other parties such as relatives or support people may also attend. Because mediation is a confidential process, however, the mediator may choose to exclude certain individuals from all or portions of the mediation.

Children are not typically allowed in the mediation. Exception to this rule is in respect to children who are the subject of the mediation and who may be approved to attend by the Guardian ad Litem's and the mediator.

Do I have to attend?

Once mediation is ordered by the court, attendance by all the parties is mandatory. Failure to attend may result in court ordered sanctions. If you have an emergency situation such as a serious illness or hospitalization, contact your attorney and the mediation program (801-238-7846) immediately. If you receive voice mail, in your effort to contact the mediation program, please do not leave a message but dial "0" for the receptionist and request that they page someone in the mediation office.

Should I still attend if I have a Protective Order?

Yes. However, you should make sure your attorney is aware of any concerns you may have. If you do not have an attorney, you can discuss your concerns with your caseworker or call the mediation office at (801) 238-7846. Arrangements can be made so that you can participate safely in the mediation.

Do I have to bring an attorney?

You have the right to have an attorney present at the mediation with you if you wish. The mediations frequently deal with serious family issues. If you have already retained an attorney or the court has appointed one for you, the attorney must be present.

If your intention is to retain an attorney, the mediation will not convene unless your attorney is present.

If you would like an attorney and cannot afford one, you can obtain an application for appointment of counsel from the court clerk. If you qualify, an attorney will be appointed to represent you.

If you attend the mediation without your attorney, neither the mediator nor the other attorneys present will be able to provide you with independent legal advice.

What does the mediator do?

The mediator's role is to assist the parties in communicating and managing the process in an effort to reach a mutually satisfying agreement. The mediator does not work for the juvenile court or any State agency dealing with child welfare matters. A mediator is unbiased and does not advocate for any of the parties. The mediator does not have authority to make decisions about your case. Instead, the mediator will help the parties gather information, identify the issues and negotiate a potential agreement.

How long does mediation last?

Can anyone use information discussed at the mediation in court?

Mediation is a confidential process and all parties that participate will be required to sign a confidentiality agreement. Any communication made during the mediation process cannot be disclosed by anyone except with the consent of ALL of the parties in attendance. There are several exceptions:

If the information could be obtained from another source (NOT just obtained during the mediation), it can be used in court from that other source.

Communication about incidents of previously unreported child abuse, abuse of elderly or incapacitated persons or threats of physical harm do not remain confidential.

Any agreement that is made and signed as a result of the mediation session will be submitted to the court.

Attorney Questions

What types of cases are eligible for mediation through the Child Welfare Mediation Program?

Any child welfare case currently under the jurisdiction of the juvenile court is eligible to be referred to mediation. Cases can be mediated at any stage of the child welfare process - from pre-adjudication to post-termination/relinquishment.

What kinds of cases have been found to benefit most from mediation?

Legal stage, type, history, or severity of the case are not predictive factors regarding whether mediation will be useful. Fact patterns are the easiest way to identify whether a case might lend itself to mediation. Mediation may be useful when:

the parties indicate that the alternative to mediation would be a contested hearing;

How does a case get referred to Child Welfare Mediation?

The Court is the "gatekeeper" for referrals to mediation. Any party, attorney, caseworker, professional, or individual involved in a case can, at any time during the course of the case, request the court to refer the matter to mediation. The court retains the authority to grant or deny the request, or may itself initiate the referral to mediation. A formal order to mediate from the judge is required before the mediation can take place.

Mediation generally is ordered in court during a hearing. However, a written Motion and Order for Mediation may be submitted by any attorney or pro se individual involved in a case at any stage of the proceeding.

Do attorneys attend the mediation?

Attorney attendance is mandatory. Participating attorneys are usually the state's attorney, parents defense counsel, and the Guardian ad Litem (child's attorney). Failure to attend mediation may result in court ordered sanctions.

What if an attorney has an extenuating circumstance that will prevent them from attending the scheduled mediation?

Rules of Professional Conduct 4.2 prohibits a lawyer(s) from communicating with a person the lawyer knows to be represented by another lawyer, unless the lawyer has the consent of the other lawyer, or is otherwise authorized to do so. If one party’s attorney is not present, another party’s attorney who is participating in the mediation will be communicating with a person he or she “knows to be represented by counsel” in contravention of Rule 4.2. With one exception, described in detail below, all attorneys need to be present for the mediation to properly proceed.

If extenuating circumstances preclude an attorney from attending a scheduled mediation, the mediation may proceed only if the attorney signs and delivers to the mediator a Limited Waiver to Allow Client Communication During Mediation ( PDF). This waiver requires the attorney to certify that his or her client has given voluntary and informed consent to waive counsel and that he or she has given the client full authority to settle the matter.

The waiver must be faxed to (801) 238-7828 at least 24 hours prior to the mediation.

Can an attorney or client appear telephonically?

Counsel and their client must appear in person for mediation. Mediation is a process that requires interactive, face to face dialogue. Under exceptional circumstances when telephonic participation is vital, the requesting party must contact the mediation office at least one week prior to the scheduled mediation date to determine if telephonic participation is possible.

How do I get a mediation date changed?

Since mediation dates are generally calendared in court and parties have agreed to the date, the parties must agree to a change of date. The requester can contact the mediation office at (801) 238-7846 or the court clerk for a list of potential new dates. The requester must then contact the other parties and coordinate a new date. The original mediation date stands until the parties have agreed to a new date and the requester contacts the mediation office with the new date. If the new date is beyond the next court date, the Judge must also approve the date change. It is the requesting parties responsibility to send out written notice to confirm the date change with all parties.

Due to statutory guidelines and time lines applicable to many cases, a mediation date cannot be scheduled past the next court date without the court’s approval. When the requester wants to continue a mediation date beyond the next court date, a motion and order needs to be submitted directly to the court with a copy faxed to the mediation office at (801) 238-7828. The original date stands until the court has approved the motion.

How do I cancel a mediation?

Once the court has ordered mediation, cancelling the scheduled mediation requires the court's approval, unless an emergency situation exists.

A Motion and Order to Vacate the Mediation is filed directly with the court and a signed copy faxed to the mediation office at (801) 238-7828.

In the case of an emergency situation such as a serious illness or hospitalization, contact the mediation office as soon as possible at (801) 238-7846. If you receive voice mail please do not leave a message but dial "0" for the receptionist and request that they page someone in the mediation office.

How can mediation help my client?

DCFS Caseworker Questions:

How can mediation help me and my client?

The benefits of Child Welfare Mediation according to DCFS caseworkers(1)

Good outcomes; helps to develop better communication among parties; keeps all parties on "same page."

Seems to focus more on solutions rather than fault-finding.

Increases client understanding.

Helps all parties identify problems and solutions before having ruling on it.

It does allow clients to present their side in front of an uninvolved party. Prevents court time. Prevents repeated appeals.

All parties in same room reduces manipulation and increases ability of parents to present their view in safe environment.

Helps clarification.

I feel it helps pull everyone together so that all parties understand the process and what is going on and is expected.

It relieves the caseworker from having to explain court procedures. It incorporates both systems.

Can reach agreements that could not be worked out in a hearing. Less formal, more open.

An excellent resource for families who wish to accept responsibility and seek resolutions.

Finds common ground for both parties; reduces confrontation; increases understanding.

Family's opportunity to speak up and offer their input and views. Provides more autonomy not only to families but caseworkers also.

It saves time in court and gets family into treatment sooner.

It encourages active participation from clients and helps them to feel that they have a say in things.

I like the way the items brought to the table are resolved. They have really cut down on court time (trials, etc.). Thank you!

Resolutions that family agrees on and has input about. The family knows what to expect. Worker is supported.

It has someone from an outside source officiate in difficult cases; puts less pressure on caseworker. Things get accomplished and a plan is implemented that is agreed upon by all or most and not one person such as the judge.

I like mediation - my clients are at a huge disadvantage in all aspects of the system and mediation is the least disadvantageous situation for them. We have excellent mediators! Positive to have all parties present in a less adversarial setting; reduces trial; gives clients chance to have say without trial.